The Wall Street Journal ran an interesting story last week by its drama critic Terry Treachout about a theater company in Washington which backed out of producing a play called "Imagining Madoff" because it had received threats of litigation from famed author and Holocaust survivor Elie Weisel.
Apparently, Weisel and his foundation were victims of Madoff's fraud and the playwright, Deb Margolin became interested in trying to imagine conversations between the two. Weisel took offense at his fictional portrayal. According to the article, he found it "defamatory" and "obscene" and in words which could have only been written by a playwright or a lawyer threatened to sue, if the play was performed "any time in any venue".
The article goes on to examine the First Amendment and the current state of libel law but then hits upon the sad stark reality that in this country, all one has to do is threaten to sue someone else to curtail their right to free expression. Mr. Weisel is a public figure and the playwright and theater company were most likely in their rights in producing the work, embarrassing as it might have been to Mr. Weisel. However, as Treachout writes, "when a world famous plaintiff decides to stare down a not so rich defendant who can't afford to fight back, the defendant usually blinks." I don't do a lot of work in libel law but I do find myself advising clients in the trademark area and quite often, when evaluating a mark that might draw negative attention from a rich corporate defendant, we end up evaluating the financial might of the potential plaintiff much more than the legal merits of the defendant's case or the relative strength of his mark. This is a sad unfortunate fact of advising clients in the 21st century; they might be able to win the case but they can’t afford to fight the case.